SLO hit with complaint over 2011 binding arbitration ballot

The state agency that oversees the collective bargaining statutes with cities has filed an unfair practice complaint against the city of San Luis Obispo on behalf of its police union.

The complaint is the latest tussle in a contentious battle between the San Luis Obispo Police Officers Association and the city following the City Council’s decision last year to seek voter approval to change the way the city bargains with its public safety employees. City Attorney Christine Dietrick said such complaints are rare, and it is the first filed against the city by the Public Employment Relations Board in at least the past seven years.

“We view this as vindication of what we have said all along,” said the union’s attorney, Alison Berry Wilkinson. The union’s view is that the city violated its obligation to meet and confer even though the city says it did not.

“I believe this says, yes, the city did have a legal obligation to do so and we are valid in protesting it,” Wilkinson said.

It is unknown whether this might affect the decision reached in August when 70 percent of San Luis Obispo voters overwhelmingly passed two ballot measures overturning binding arbitration and allowing the city to create a two-tier pension plan without voter approval.

The union claims PERB’s complaint could ultimately lead to the election being overturned; the city claims it should not.

In mid-October, the Police Officers Association filed a claim with PERB that San Luis Obispo used unfair labor practices by placing two measures on the ballot to repeal binding arbitration and allow the city to negotiate reduced employee retirement benefits without seeking voter approval.

The police union wants to upend the voters’ decision to repeal binding arbitration as a means of negotiating wages and benefits by the unions.

“PERB’s issuance of a complaint is disappointing, but it is important to keep in mind that a complaint is only an allegation and we are a long way from a determination on the merits of this issue,” Dietrick said.

The city maintains that it acted legally and “in a manner that is consistent with both the letter and spirit of applicable labor relations laws,” Dietrick added.

The police union’s claim asserts that San Luis Obispo violated state law and the city charter by refusing to meet and confer with the union before the City Council moved forward with the ballot measures.

“The remedy we are requesting is that the vote taken be declared invalid and the police association be reimbursed for the funds it had to spend to campaign against the measures,” Wilkinson said.

An informal conference is set for June 5 when both parties will meet with a PERB attorney and try to reach a settlement. If an agreement is not reached, a hearing date will be set.

Dietrick said a settlement before a hearing is unlikely. “If what they are seeking is invalidation of the election, then it makes resolution impossible because that is a result the city would not agree to,” she said.

Dietrick argues that existing case law indicates that it is not within PERB’s jurisdiction to invalidate the election. Wilkson, however, said “the city is wrong.”

“It is within PERB’s jurisdiction to invalidate the election,” she said. “They have the authority to issue any order required to remedy the unfair labor practice.”

Les Chisholm, division chief in the Office of General Counsel for PERB, said the PERB board has “broad remedial powers,” but did not know whether there were any past examples of the board specifically ordering the invalidation of an election as the result of a complaint.

“The board has to first answer that question through a fully litigated case before it can be decided,” Chisholm said. “I’m not sure that board has addressed this precise question yet.”

In two similar cases, both involving the county of Santa Clara, the board issued cease-and-desist orders that required the county to post a finding that it had violated the act pertaining to meet and confer obligations. However, in both cases it was found that the county did not unlawfully place measures on the ballot.

Chisholm said there are 800 unfair practice charges filed with PERB each year, and on average up to 40 percent of those result in complaints issued.

Wilkinson said that if the hearing resulted in a favorable ruling for the police union, but did not invalidate the election, it would give the union “grounds to seek invalidation through an action brought in quo warranto.” That process is handled through the Attorney General’s Office.

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